To argue or not to argue, that is the question.

Ken at CrimLaw wants to abolish oral arguments in appellate courts. His primary reason is that "appellate court decisions are supposed to be dispassionate, considered, legal decisions." Well, I certainly can't argue with that statement but frankly I fail to see how oral arguments necessarily detract from achieving that laudable goal.

I will be the first to admit that oral argument often makes no difference in the outcome of the appeal and indeed, some appellate courts have largely dispensed with it. Furthermore, Ken is also correct that "an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges." However, I would nevertheless offer this modest dissent to Ken's post.

First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.

Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when the briefs are poorly written, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.

Finally, my selfish reason for not wanting to completely abandon oral arguments - it's nice to get out of the office and onto the bench occasionally to interact with fellow professionals and discuss fine points of law in a meaningful way.

My court often dispenses with oral arguments when the panel sees no need for them and quite a few lawyers waive oral argument even if we might like to hear from them about the issues but I would find my job a lot less satisfying if we abandoned them completely.